Millard Fillmore, Badass

Over at the Daily Caller they have produced a Top Ten List of the most badass American political names.  And there, lo and behold, is Millard in all his glory, with the following explanation:

Millard Fillmore - just an all around American bad ass.  No further explanation needed.

As Glenn Reynolds would say, Heh.

How Dagger John Saved New York's Irish

Do you know John Hughes?  The excellent City Journal site is currently featuring a wonderful older (but new to me) article on New York's first Catholic Archbishop: How Dagger John Saved New York's Irish.

We are not the first generation of New Yorkers puzzled by what to do about the underclass. A hundred years ago and more, Manhattan’s tens of thousands of Irish seemed a lost community, mired in poverty and ignorance, destroying themselves through drink, idleness, violence, criminality, and illegitimacy. What made the Irish such miscreants? Their neighbors weren’t sure: perhaps because they were an inferior race, many suggested; you could see it in the shape of their heads, writers and cartoonists often emphasized. In any event, they were surely incorrigible.

But within a generation, New York’s Irish flooded into the American mainstream. The sons of criminals were now the policemen; the daughters of illiterates had become the city’s schoolteachers; those who’d been the outcasts of society now ran its political machinery. No job training program or welfare system brought about so sweeping a change. What accomplished it, instead, was a moral transformation, a revolution in values. And just as John Wesley, the founder of Methodism in the late eighteenth century, had sparked a change in the culture of the English working class that made it unusually industrious and virtuous, so too a clergyman was the catalyst for the cultural change that liberated New York’s Irish from their underclass behavior. He was John Joseph Hughes, an Irish immigrant gardener who became the first Catholic archbishop of New York. How he accomplished his task can teach us volumes about the solution to our own end-of-the-millennium social problems.

Highly recommended.

Happy Birthday, Johann!

I'm never sure when to celebrate Johann Sebastian Bach's birthday, since he was born on March 21, 1685 (o.s) and March 31, 1685 (n.s.). That uncertainty notwithstanding, happy birthday, Mr. B!

The Epistle of Barnabas

The Epistle of Barnabas was reportedly in the running to be a book of the New Testament.  It's a good thing it lost.  Apart from the fact that it's an intensely anti-Jewish screed, which would have made Jewish-Christian reconciliation even more difficult, Christians would have been saddled with a bunch of absurd folk tales.

Among other things, Barnabas claims that the Jews profoundly misunderstood  the laws of Moses.  Take the dietary laws, for instance.  God wasn't talking literally, you idiots, he was speaking metaphorically.  You can eat hare, for example, just don't grow multiple orifices like those slutty hares do:

Barnabas 10:6
Moreover thou shalt not eat the hare. Why so? Thou shalt not be found a corrupter of boys, nor shalt thou become like such persons; for the hare gaineth one passage in the body every year; for according to the number of years it lives it has just so many orifices.

The hyena, it turns out, is a sex change artist:

Barnabas 10:7
Again, neither shalt thou eat the hyena; thou shalt not, saith He, become an adulterer or a fornicator, neither shalt thou resemble such persons. Why so? Because this animal changeth its nature year by year, and becometh at one time male and at another female.

And the weasel apparently takes oral sex to a whole new level:

Barnabas 10:8

Moreover He hath hated the weasel also and with good reason. Thou shalt not, saith He, become such as those men of whom we hear as working iniquity with their mouth for uncleanness, neither shalt thou cleave unto impure women who work iniquity with their mouth. For this animal conceiveth with its mouth.

Was James Madison Fibbing?

In the latter part of July 1788, the convention convened in Poughkeepsie to determine whether New York would ratify the United States Constitution was approaching conclusion.  Several days earlier, on July 17, 1788, anti-Constitution delegate Melancton Smith had proposed that the delegates ratify the Constitution.  But there was a significant catch: New York would expressly reserve the right to recede if the new Congress did not authorize, within a specified number of years, a convention under Article V for the consideration of amendments.  Smith's motion provided in relevant part (emphasis added):

[T]he Convention . . . have therefore agreed to assent to and ratify the said Constitution in the firmest confidence that an opportunity will be speedily given to revise and amend the said Constitution, in the mode pointed out in the fifth article thereof, expressly reserving nevertheless to this state a right to recede and withdraw from the said Constitution, in case such opportunity be not given within ____ years.

James Madison was then in New York City, having recently come from Virginia, where he had successfully led the pro-Constitution forces to victory at that state's ratification convention in late June.  On July 20, 1788, Madison wrote a response to a letter he had received from Alexander Hamilton in Poughkeepsie, in which Hamilton somewhat sheepishly advised Madison that he was inclined to go along with Smith's proposal as the best that could be done.  Madison fired back a letter in which he advised that Smith's proposal was unacceptable and had to be rejected (bold added):

To Alexander Hamilton
N. York Sunday Evening [July 20, 1788]

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.

[P.S.] This idea of reserving [a] right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

This post focuses on Madison's postscript, in which he stated that the Virginia Convention had considered "[t]his idea of reserving right to withdraw" similar to that proposed by Melancton Smith and had rejected it on the grounds that it was "a conditional ratification which was itself considered as worse than a rejection."  The bottom line question: was Madison's assertion true?  Or was Jemmy fibbing?

Madison's postscript in fact contains two assertions: (1) Did the Virginia Convention consider the reservation of a right to withdraw akin to Smith's?  And (2) Did the Virginia Convention reject it because it was a conditional ratification worse than a rejection?  We consider each in turn.

George Wythe's Motion

In her fine book Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier identifies one instance in which the idea of ratification subject to a right to withdraw may have been presented at the Virginia Convention.

On Tuesday June 24, 1788 George Wythe took the floor of the Convention, then sitting as a committee of the whole, and moved for ratification.  The motion, however, was "complex."  Among other things, it described a number of essential rights that could not be abridged under the Constitution, such as liberty of conscience and freedom of the press.  It also specified (in the words of Prof. Maier) "that any imperfections in the Constitution should be addressed through the amending process it prescribed rather than endanger the union by seeking previous amendments."

Although the record is unclear, Wythe may also have proposed that Virginia's ratification would "cease to be obligatory" if recommended amendments were not acted on within two years:

Wythe then moved to his main resolutions: that, in the opinion of committee of the whole, the Constitution should be ratified, and that the convention should recommend amendments to the first federal Congress.  He perhaps asked that another another committee draw up those amendments.  According to Patrick Henry, the text of Wythe's motion, which [David] Robertson [the Reporter of the Convention] did not include in the Debates - also said that Virginia's ratification would "cease to be obligatory" if the amendments the convention proposed were not enacted.

A look at Volume 3 of Elliot's Debates confirms that the official report of the Virginia Convention did not, in fact, include a right of withdrawal in Wythe's motion.  However, the reporter himself admitted that Wythe "spoke so very low that his speech could not be fully comprehended."  For the record, here is Wythe's speech as recorded.  I have added additional paragraph breaks; the emphases are in the original:

Mr. WYTHE arose, and addressed the chairman; but he spoke so very low that his speech could not be fully comprehended.

He took a cursory view of the situation of the United States previous to the late war, their resistance to the oppression of Great Britain, and the glorious conclusion and issue of that arduous conflict. To perpetuate the blessings of freedom, happiness, and independence, he demonstrated the necessity of a firm, indissoluble union of the states. He expatiated on the defects and inadequacy of the Confederation, and the consequent misfortunes suffered by the people. He pointed out the impossibility of securing liberty without society, the impracticability of acting personally, and the inevitable necessity of delegating power to agents.

He then recurred to the system under consideration. He admitted its imperfection, and the propriety of some amendments. But the excellency of many parts of it could not be denied by its warmest opponents. He thought that experience was the best guide, and could alone develop its consequences. Most of the improvements that had been made in the science of government, and other sciences, were the result of experience. He referred it to the advocates for amendments, whether, if they were indulged with any alterations they pleased, there might not still be a necessity of alteration.

He then proceeded to the consideration of the question of previous or subsequent amendments. The critical situation of America, the extreme danger of dissolving the Union, rendered it necessary to adopt the latter alternative. He saw no danger from this. It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states.

He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.

However, Prof. Maier correctly observes that Patrick Henry's subsequent remarks appear to confirm that he, at least, heard Wythe propose some sort of right to withdraw.  After Wythe concluded, Henry, the leader of the Anti forces at the convention, immediately rose to urge that Virginia should refuse to ratify the Constitution without prior amendments.  What responsible party, Henry argued, would enter into a compact without first obtaining assurances on the most critical points?  In this context, Henry indicated that (emphasis added):

According to the honorable member's proposal, the ratification will cease to be obligatory unless they accede to these amendments.  We have ratified it.  You have committed a violation, will they say.  They have not violated it.  We say, we will go out of it.  You are then reduced to a sad dilemma--to give up these three rights [Henry also complained that Wythe had identified only three rights as having been omitted], or leave the government.  This is worse than our present Confederation, to which we have hitherto adhered honestly and faithfully.  We shall be told we have violated it, because we have left it for the infringement and violation of conditions which they never agreed to be a part of the ratification.  The ratification will be complete.  The proposal is made by the party.  We, as the other, accede to it, and propose the security of these three great rights; for it is only a proposal. In order to secure them, you are left in that state of fatal hostility which I shall as much deplore as the honorable gentleman.  I exhort gentlemen to think seriously before they ratify this Constitution, and persuade themselves that they will succeed in making a feeble effort to get amendments after adoption.  

On balance, then, it appears that Madison did correctly relate "[t]his idea of reserving right to withdraw was started at Richmd."  But what about Madison's second assertion - that the "idea of reserving right to withdraw" was "considered as a conditional ratification which was itself considered as worse than a rejection"?  For the answer to that question, let's look at what became of Wythe's proposal.

The Response to Wythe's Proposal

As we have seen, Patrick Henry immediately attacked Wythe's proposal on the grounds that anything other than prior amendments would be ineffective and foolish:

With respect to subsequent amendments, proposed by the worthy member, I am distressed when I hear the expression. It is a new one altogether, and such a one as stands against every idea of fortitude and manliness in the states, or any one else. Evils admitted in order to be removed subsequently, and tyranny submitted to in order to be excluded by a subsequent alteration, are things totally new to me. But I am sure the gentleman meant nothing but to amuse the committee. I know his candor. His proposal is an idea dreadful to me. I ask, does experience warrant such a thing from the beginning of the world to this day? Do you enter into a compact first, and afterwards settle the terms of the government?

***

I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. I fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows: When men are free front restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community Will seize with avidity every thing you hold. In this unhappy situation, what is to be done? It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

Henry's long (pp. 587-596) and vehement speech allowed the pro-Constitution forces to focus the substance of his proposed amendments and the danger of requiring that they be incorporated into the Constitution as a condition of ratification - while avoiding Wythe's proposal altogether.  Governor Edmund Randolph followed Henry's speech with an equally long speech of his own, in which he contrasted the catastrophe of conditional ratification with the efficacy of post-ratification recommended amendments, never once mentioning Wythe's compromise:

What are we about to do? To make this [prior amendments] the condition of our coming into this government. I hope gentlemen will never agree to this. If we declare that these amendments, and a bill of rights containing twenty articles, must be incorporated into the Constitution before we assent to it, I ask you whether you may not bid a long farewell to the Union? It will produce that deplorable thing--the dissolution of the Union--which no man yet has dared openly to advocate. . . .  Let gentlemen seriously ponder the calamitous consequences of dissolving the Union in our present situation. I appeal to the great Searcher of hearts, on this occasion, that we behold the greatest danger that ever happened hanging over us; for previous amendments are but another name for rejection. They will throw Virginia out of the Union, and cause heartaches to many of those gentlemen who may vote for them.

But let us consider things calmly. Reflect on the facility of obtaining amendments if you adopt, and weigh the danger if you do not. Recollect that many other states have adopted it, who wish for many amendments. I ask you if it be not better to adopt, and run the chance of amending it hereafter, than run the risk of endangering the Union. The Confederation is gone; it has no authority. If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose, and anarchy and discord will complete the ruin of this country. Previous adoption will prevent these deplorable mischiefs. The union of sentiments with us in the adopting states will render subsequent amendments easy. I therefore rest my happiness with perfect confidence on this subject.

When Madison himself rose somewhat later (pp. 616-622) that same day, he likewise ignored Wythe's compromise, framing the choice as one between ratification with suggested amendments and requiring "certain alterations, as the previous condition of [Virginia's] accession":

Suppose eight states only should ratify, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposition, which is the most favorable conclusion, the difficulty attending it will be immense. Every state which has decided it, must take up the subject again. They must not only have the mortification of acknowledging that they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it. They must attend to all the amendments, which may be dictated by as great a diversity of political opinions as there are local attachments. When brought together in one assembly, they must go through, and accede to, every one of the amendments.

The gentlemen who, within this house, have thought proper to propose previous amendments, have brought no less than forty amendments, a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments? And suppose them to be contradictory! I leave it to this Convention whether it be probable that they can agree, or agree to any thing but the plan on the table; or whether greater difficulties will not be encountered than were experienced in the progress of the formation of the Constitution.

***

I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union.

Wythe's proposal never resurfaced.  The next day, Wednesday June 25, 1788, after further unrelated debate, the Virginia Convention, sitting as committee of the whole, rejected, by a vote of 80 to 88, a resolution requiring the submission of proposed amendments to the other states before ratification.  The Convention then adopted, by a vote of 89 to 79, a resolution ratifying the Constitution with recommended amendments only:

Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,-

Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.

So was James Madison fibbing when he stated that "This idea of reserving right to withdraw was . . . considered [by the Virginia Convention] as a conditional ratification which was itself considered as worse than a rejection"?  I would say the answer is clearly "yes." The only person who addressed that aspect of Wythe's proposal was Patrick Henry.  And, as we have seen, he attacked it as ineffectual.  The clear import of Madison's comment to Hamilton was that the pro-Constitution forces at the Virginia Convention had objected to the proposal as "conditional" and "worse than a rejection."  The available record indicates that they did nothing of the sort.  Nor is there any reason to believe that the Virginia Convention rejected Wythe's proposal for that reason.

Happy Belated Birthday, Mr. President

I failed to mark James Madison's birthday yesterday, but not to worry: over at Millard Fillmore's Bathtub, Ed Darrell noted the occasion with a lengthy post replete with links: March 16, Freedoms Day - How to Celebrate James Madison?

By way of belated celebration, let me one last link.  Harriet Martineau, a Briton touring the United States, arrived at Montpelier on February 18, 1835, remaining several days.  Several years later, she published a two-volume work describing her travels, Retrospect of Western Travel.  Her description of the now elderly Madison, 83 years of age at the time of her visit, which appears in the first volume, is probably my favorite portrait of the former president.  I have added some paragraph breaks:

It was a sweet day of early spring. The patches of snow that were left under the fences and on the rising grounds were melting fast. The road was one continued slough up to the very portico of the house. The dwelling stands on a gentle eminence, and is neat and even handsome in its exterior, with a flight of steps leading up to the portico. A lawn and wood, which must be pleasant in summer, stretch behind; and from the front there is a noble object on the horizon, the mountain-chain which traverses the state, and makes it eminent for its scenery. The shifting lights upon these blue mountains were a delightful refreshment to the eye after so many weeks of city life as we had passed.

We were warmly welcomed by Mrs. Madison and a niece, a young lady who was on a visit to her; and when I left my room I was conducted to the apartment of Mr. Madison. He had, the preceding season, suffered so severely from rheumatism, that, during this winter, he confined himself to one room, rising after breakfast, before nine o'clock, and sitting in his easy-chair till ten at night.

He appeared perfectly well during my visit, and was a wonderful man of eighty-three. He complained of one ear being deaf, and that his sight, which had never been perfect, prevented his reading much, so that his studies "lay in a nutshell;" but he could hear Mrs. Madison read, and I did not perceive that he lost any part of the conversation. He was in his chair, with a pillow behind him, when I first saw him; his little person wrapped in a black silk gown; a warm gray and white cap upon his head, which his lady took care should always sit becomingly; and gray worsted gloves, his hands having been rheumatic. His voice was clear and strong, and his manner of speaking particularly lively, often playful. Except that the face was smaller, and, of course, older, the likeness to the common engraving of him was perfect. He seemed not to have lost any teeth, and the form of the face was therefore preserved, without any striking marks of age. It was an uncommonly pleasant countenance.

His relish for conversation could never have been keener. I was in perpetual fear of his being exhausted; and at the end of every few hours I left my seat by the arm of his chair, and went to the sofa by Mrs. Madison on the other side of the room; but he was sure to follow and sit down between us; so that, when I found the only effect of my moving was to deprive him of the comfort of his chair, I returned to my station, and never left it but for food and sleep, glad enough to make the most of my means of intercourse with one whose political philosophy I deeply venerated.

There is no need to add another to the many eulogies of Madison; I will only mention that the finest of his characteristics appeared to me to be his inexhaustible faith; faith that a well-founded commonwealth may, as our motto declares, be immortal; not only because the people, its constituency, never die, but because the principles of justice in which such a commonwealth originates never die out of the people's heart and mind.

This faith shone brightly through the whole of Mr. Madison's conversation except on one subject. With regard to slavery he owned himself almost to be in despair. He had been quite so till the institution of the Colonization Society. How such a mind as his could derive any alleviation to its anxiety from that source is surprising. I think it must have been from his overflowing faith; for the facts were before him that in eighteen years the Colonization Society had removed only between two and three thousand persons, while the annual increase of the slave population in the United States was upward of sixty thousand.

For a fine book on the older Madison and his legacy, I highly recommend Drew R. McCoy's evocative and thoughtful The Last of the Fathers: James Madison & The Republican Legacy.

Six Answers for Seth Barrett Tillman

I posted recently on Lawprof Seth Barrett Tillman's fun article posing Six Puzzles for Professor Akhil Amar.

Now I see that at The Originalism Blog Lawprof Michael Ramsey has taken up the challenge: My Answers to Seth Barrett Tillman's Six Questions.

Enjoy!

Founding Golfer?

Over at Concurring Opinions, Lawprof Gerard Magliocca points out that James Wilson "was probably the only Founder to play golf."

The evidence?

1.  Wilson was born in Scotland and lived there until he was 23.

2.  He went to college at St. Andrews, the home of golf.

3.  There is an anecdote about him playing golf as a young man, though that could be apocryphal.

It's possible.  Wilson was born in 1742 and apparently studied at the University of St. Andrews in the early 1760s, later emigrating to Philadelphia in 1766. The predecessor to Royal and Ancient Golf Club of St, Andrews was founded in 1754.

The Three-Fifths Clause In the News!

As you may have heard, Emory University President James Wagner wrote a column earlier this year in which he praised the Three-Fifths Clause as an example of Constitutional compromise:

During a Homecoming program in September, a panel of eminent law school alumni discussed the challenges of governing in a time of political polarization—a time, in other words, like our own. The panel included a former US senator, former and current congressmen, and the attorney general for Georgia.

One of these distinguished public servants observed that candidates for Congress sometimes make what they declare to be two unshakable commitments—a commitment to be guided only by the language of the US Constitution, and a commitment never, ever to compromise their ideals. Yet, as our alumnus pointed out, the language of the Constitution is itself the product of carefully negotiated compromise.

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union. They set their sights higher, not lower, in order to identify their common goal and keep moving toward it.

The usual suspects called for President Wagner's head and he was forced to grovel:

A number of people have raised questions regarding part of my essay in the most recent issue of Emory Magazine. Certainly, I do not consider slavery anything but heinous, repulsive, repugnant, and inhuman. I should have stated that fact clearly in my essay. I am sorry for the hurt caused by not communicating more clearly my own beliefs. To those hurt or confused by my clumsiness and insensitivity, please forgive me.

With this background, and as one who has read a fair amount about the Three-Fifths Clause, I enjoyed running across this column by one brave soul who dared to speak truth to PC power:

Wagner’s travails strike a personal note: In some twenty years of teaching the Introduction to American Government course at the University of Illinois-Urbana I have often made the identical argument, that the three-fifths compromise was a brilliant political compromise to solve a grave political problem. I made that point in front of as many as 1400 students including many African American students (and who knows how many apprentice PC commissars). I informed them that the compromise was about representation of the states—the apportionment of seats in the House of Representatives—and in principle had nothing to do with slavery per se. I explained that anti-slavery New England delegates wanted slaves to count as zero for purposes of representation, while Southern delegates pressed to have each counted as a full person. Without these artful compromises, I said, both the slave states and New England would have left the Union.

And that wasn’t the end of my heresies. My lectures also explained how the Founders cleverly finessed the slavery issues with multiple compromises, including that the word “slave” never appeared in the Constitution.

***

Yes, everybody agrees that while many Founders had a low opinion of slaves, others believed that slavery was a horrible wrong, but the consensus was that all these slave-related constitutional compromises were unavoidable adjustments to an unpleasant political reality if the Union was to survive. Only the most strident ideologue would insist that the Constitutional Convention could have abolished slavery and still kept the Union. 

Information about the illustration, entitled Abolition of the Slave Trade, or the Man the Master (Britain 1789), may be found at the link.

Millard Not Dissed!

Over at Millard Fillmore's Bathtub, Ed Darrell has an appreciative post on Millard: Quote of the Moment: Should We Reconsider Millard Fillmore?  He ends:

Historians often offer back-handed criticism to Fillmore for the Compromise of 1850; in retrospect it did not prevent the Civil War. In the circumstances of 1850, in the circumstances of Fillmore’s presidential career, should we expect more? Compared to Buchanan’s presidency and the events accelerating toward war, did Fillmore do so badly?

Have we underestimated Millard Fillmore? Discuss.

You know how I'd answer the question.

About the illustration, entitled Delivery of the President's Letter:

Print shows the American delegation, under the command of Matthew C. Perry, presenting a letter from President Fillmore to the Japanese, requesting the establishment of diplomatic and trade relations.

Millard Dissed Again!

Longtime readers will know I'm a big Millard Fillmore fan and get seriously perturbed when Millard is dissed.  Well, it's happened again.  Over at the Daily Caller they've posted the Top Ten Hottest US Presidents in History and Millard is MIA.  I'm not of the female persuasion, but who would choose the violent and decrepit Andy Jackson or Franklin Pierce with his greasy locks over the dapper Millard?

Six Puzzles for Professor Akhil Amar

The always enjoyable and educational Seth Barrett Tillman has a short and fun (but very dense!) new paper out on SSRN for those of you who enjoy Constitutional puzzles: Six Puzzles for Professor Akhil Amar.  Here's the abstract:

The Constitution of 1787 uses a variety of language in regard to "office" and "officer."

It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried ... this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know.

INTRODUCTION: Dear Professor Amar, Here are six constitutional puzzles for your consideration. I would be very pleased if you responded, but I do not expect you to do so. I am sure you are very busy. Still, many, many people have read your books and articles, and heard your lectures and podcasts. And some of them are almost as smart and prolific (at least, collectively) as you are. So, even if you will not, perhaps, one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?
Puzzle 2. Does Impeachment Extend to Former “Officers”?
Puzzle 3. Who are the “Officers of the United States”?
Puzzle 4. Is the President an “Officer of the United States”?
Puzzle 5. Is the Presidency an “Office . . . under the United States”?
Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”

Was Thomas Hamer the "adopted son" of Thomas Morris?

After writing Celebrating Thomas Hamer, I decided to check Jonathan H. Earle's fine book Jacksonian Antislavery & the Politics of Free Soil, 1824-1854 to try to get more information on Thomas Morris's election to the Senate in 1833.  The book confirmed that the election was an intra-Democratic affair and that there apparently were other candidates (given the close vote), but did not identify who they were:

After an unsuccessful run for a congressional seat in 1832, Morris returned to his law practice.  The election was a boon for Ohio's other Democrats, however, who won control of the legislature on the coattails of [Andrew] Jackson's reelection.  With Morris temporarily out of public life, some of the state's political leaders decided to back him for the state's vacant U.S. Senate seat.  Not only had Morris been a loyal Jacksonian since 1824, but Ohio's political chieftans saw from his long legislative record that Morris would stand behind the administration in two important areas: the bank war and the nullification crisis.  He was sent to Washington to support the administration.

***

The state's legislators elected [Morris] to the Senate in 1832 by a vote of 54-49.

So maybe Morris and Thomas Hamer had been rivals for the Senate seat in 1832 after all.

But then I read this (emphasis added):

[A]fter some equivocation, Morris decided to support the Tennessean [Andrew Jackson for president in 1824].  At the time Morris was publishing the weekly Benefactor and Georgetown Advocate in Brown County, which was the most populous county in the 5th District and one of the fastest growing in the state.  In January 1824 Morris transferred ownership of the Benefactor to his adopted son Thomas Hamer, who quickly swung the paper into the Jackson camp.  The journal was known as one of Ohio's staunchest Jacksonian papers . . ..

Can it be that Hamer was in fact Morris's "adopted son"?  I can't find much, but it seems so.  Here's a blurb from an old geneology:

. . . The noted Gen. Thomas L. Hamer, in 1818, came to Bethel a poor, friendless boy, and found a home in the family of Thomas Morris, with whom he studied law . . ..

Celebrating Thomas Hamer

Over at Power Line, Paul Mirengoff has a short but delightful post Celebrating Thomas Hamer, the Ohio Congressman who got Hiram Ulysses Grant Ulysses S. Grant into West Point.

I am, however, going to have to go back and check one point that seems amiss in the second paragraph of Paul's post:

Hamer was a lawyer in Grant’s boyhood hometown of Georgetown, Ohio, and a close friend of Jesse Grant, father of Hiram Ulysses Grant.  But Hamer was an ardent Jacksonian and Jesse Grant a strident Whig. Indeed, when Hamer ran unsuccessfully for the U.S. Senate, Grant supported his opponent, Thomas Morris. By the time Hiram Ulysses was a teenager, his father and Hamer were no longer on speaking terms.

Hamer was indeed a Jacksonian Democrat.  But Thomas Morris, whom Jesse the "strident Whig" supposedly supported over Hamer, was no Whig.  Morris was also an ardent - and indeed radical - Jacksonian.  I have written about Morris several times; those posts are collected here.

Morris served a single term in the United States Senate beginning in 1833.  Hamer was first elected to the U.S. House of Representatives that same year.  I suppose it is possible that both sought the Ohio Senate seat in 1833, but if so both did so as Jacksonian Democrats.  I suppose it is possible that Jesse supported Morris's appointment to the Senate that year, but of course Morris's "run" for the office would have focused on persuading the state legislators who appointed Senators at the time.

Did a Convert to Judaism Almost Become Emperor of Rome 200 Years Before Constantine?

95 AD marked the fourteenth year of the reign of the Roman emperor Domitian. At 43 years of age (born in 51 AD), he was hardly an old man, but lifespans were short and death always close in the ancient world.  Domitian himself had ascended the throne in 81 AD when his older brother Titus died unexpectedly of a fever at the age of 41.

Domitian, although married, had no surviving children.  Nor did he have any surviving siblings.  His father, the emperor Vespasian, had had only two children in addition to Domitian: Titus (39 AD - 81 AD) and a daughter, Flavia Domitilla the Younger (c. 45 AD - c. 66 AD).  Domitian's nearest male relative and presumed successor in the event of his early death was Titus Flavius Clemens, the son of Vespasian's brother Titus Flavius Sabinus and thus Domitian's cousin.

Flavius Clemens's date of birth seems to be unknown, but assuming a date around 50 AD, he would have been about the same age as the emperor.  Clemens apparently had his critics - in his Life of Domitian the historian Suetonius (c. 69 AD - c. 122 AD) describes Clemens as "a man of most contemptible laziness."  But whatever his faults, Clemens retained the royal favor.  He was permitted to marry his cousin Flavia Domitilla, the only daughter of Vespasian's deceased daughter Flavia Domitilla the Younger, who was thus Domitian's niece, and in 95 AD Domitian awarded him a prestigious ordinary consulship (that is, one that began at the start of the year) in 95 AD.

There is reason to believe that, in the longer term, Domitian was grooming two of the sons of Flavius Clemens and Flavia Domitilla to succeed him.  Domitian apparently appointed the famed rhetorician Quintilian to tutor the boys, and Suetonius explicitly states that "Domitian had besides openly named [Clemens's] sons, who were then very young, as his successors, changing their former names and calling the one Vespasian and the other Domitian.

All of that ended abruptly at about the time that Clemens's consulship ended on May 1, 95.  Domitian had Clemens executed, and exiled Clemens's widow to Pandateria. Why? Suetonius says only that Clemens was killed "suddenly and on a very slight suspicion," without specifying what the charges were.  However, the historian Cassius Dio (c. 150 AD - 235 AD),  writing some one hundred years later, asserts that Clemens and Domitilla were suspected of having converted to Judaism:

And the same year Domitian slew, along with many others, Flavius Clemens the consul, although he was a cousin and had to wife Flavia Domitilla, who was also a relative of the emperor's.  The charge brought against them both was that of atheism, a charge on which many others who drifted into Jewish ways were condemned. Some of these were put to death, and the rest were at least deprived of their property.  Domitilla was merely banished to Pandateria . . ..

Both the very unexpectedness of the charge and the fact that it does not fit the stereotyped Roman portrait of Domitian give it credibility.  Roman historians, including both Suetonius and Dio, delighted in portraying Domitian as a jealous tyrant quick to act against any who insulted him or posed a threat, however trivial.  Suetonius, for example, provides a laundry list of such victims, including Clemens's elder brother (and Domitian's cousin) Titus Flavius Sabinus, who was allegedly killed "because on the day of the consular elections the crier had inadvertently announced him to the people as emperor elect instead of consul:"

[Domitian] put to death many senators, among them several ex-consuls, including Civica Cerealis, at the very time when he was proconsul in Asia, Salvidienus Orfitus, Acilius Glabrio while he was in exile — these on the ground of plotting revolution, the rest on any charge, however trivial.  He slew Aelius Lamia for joking remarks, which were reflections on him, it is true, but made long before and harmless. . . .  He put to death Salvius Cocceianus, because he had kept the birthday of the emperor Otho, his paternal uncle; Mettius Pompusianus, because it was commonly reported that he had an imperial nativity and carried about a map of the world on parchment and speeches of the kings and generals from Titus Livius, besides giving two of his slaves the names of Mago and Hannibal; Sallustius Lucullus, governor of Britain, for allowing some lances of a new pattern to be named "Lucullean," after his own name; Junius Rusticus, because he had published eulogies of Paetus Thrasea and Helvidius Priscus and called them the most upright of men; and on the occasion of this charge he banished all the philosophers from the city and from Italy.  He also executed the younger Helvidius, alleging that in a farce composed for the stage he had under the characters of Paris and Oenone censured Domitian's divorce from his wife; Flavius Sabinus too, one of his cousins, because on the day of the consular elections the crier had inadvertently announced him to the people as emperor elect, instead of consul.

The execution of Clemens presented the ancient historians with the perfect opportunity to portray Domitian, yet again, as a paranoid obsessed with uncovering insults and signs of usurpation.  Their failure to do so strongly suggests that the charge was in fact something else.

Domitian's most careful modern biographer, Brian W. Jones, agrees that "Cassius Dio's comment on Clemens's atheism or adoption of Jewish ways should not be rejected out of hand."  In his book The Emperor Domitian, Prof. Jones cites tantalizing hints in Jewish sources that suggest that Clemens may have at least been attracted to Judaism:

In Talmudic and Midrashic sources, reference is made to a Jewish proselyte named Onkelos, described as a son of Kalonikos or Kalonymos and as a nephew of Titus; on three occasions, the emperor tried to arrest him, but failed.  In view of the vague similarity between Clemens and Kalonymos together with the reference to the imperial family, Cassius Dio's comment on Clemens's atheism or adoption of Jewish ways (67.14.2) should not be rejected out of hand.  Furthermore, the Midrash and the Babylonian Talmud refer to a senator named Keti'ah bar Shalom who, converted with his wife to Judaism, was put to death by an emperor.  All this is not hard evidence for the existence or extent of Clemens's sympathy with Judaism; probably it was only slight, but zealous delatores [informants] may well have found it enough to enable them to denounce him to the highly suspicious Domitian.

It remains to consider whether Clemens and Domitilla might have been attracted to Christianity rather than to Judaism.  As you may be aware, Christians later claimed them as martyrs.  Prof. Jones explains:

In the Christian tradition (i.e., the Acta of Saints Nereus and Achilleus), Domitilla and two of her eunuch servants, Nereus and Achilleus, were exiled to Terracina, where her servants were beheaded and she was burned to death.  All three became official martyrs, with a feast day on 12 May (until 1969, when hers was abolished).

Nonetheless, the link to Christianity is doubtful.  Dio, who was writing about 225 AD in Bithynia, "one of the most Christianized provinces of the Empire" (William H.C. Frend, The Early Church), specifically states that Clemens was associated with Judaism, not Christianity (although, as Prof Frend also points out, Dio "never mentions Christianity in his work").  The Roman Catacombs of Domitilla began as grant of land for her freedmen and did not become Christian until the mid to late 2nd Century.  The story of her conversion smacks of legend with different versions of the story in circulation and changing over time.  The Church historian Eusebius of Caesarea, for example, writing in the first third of the fourth century, characterizes Domitilla as Clemens's niece, not his wife, and has her banished to Pontia rather than to Pandateria or Terracina.  ("[I]n the fifteenth year of Domitian Flavia Domitilla, daughter of a sister of Flavius Clement, who at that time was one of the consuls of Rome, was exiled with many others to the island of Pontia in consequence of testimony borne to Christ").  Finally, Prof. Jones reports that Clemens himself - as opposed to his wife - was first hailed as a Christian by George Syncellus (died after 810 AD) in the late 8th Century, some 700 years after Clemens's death.

It's Caturday!

Sallie gives me tongue - twice!

Edmund Randoph's Opinion on the Recess Appointments Clause

As you may have heard, the United States Circuit Court for the District of Columbia recently used originalist analysis to hold that recess appointments that President Obama made to the NLRB violated the Recess Appointments Clause of the Constitution.  All three of the judges on the panel held that the Clause permitted the president to make recess appointments only during inter-session recesses of the Senate.  Two of the three judges also held that the president had the power to make recess appointments only when the vacancy arose during that recess (the third judge found it unnecessary to reach that issue).

For those of you interested in the subject - which should reach the Supremes fairly soon, I would think - I heartily recommend (in addition to the court's opinion), Lawprof Michael B. Rappaport's article The Original Meaning of the Recess Appointments Clause, which discusses both issues at length.

Both the D.C. Circuit and Prof. Rappaport discuss a July 7, 1792 opinion that Attorney General Edmund Randolph delivered to Secretary of State Thomas Jefferson, in which Randolph opined that both the text and the "Spirit" of the Constitution led to the conclusion that the president could not issue a commission during a recess unless the vacancy "happened" - that is, arose - during that recess.  Because I like to see things for myself, I looked around and found that the printed text of Randolph's opinion does not appear to be readily available on the internet.

I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson.  Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure.  The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792.  Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."

As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792.  In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.

Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were.  My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."

Here then is Randolph's opinion.  Emphases are in the original:

The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case

By the constitution, the President shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, &c, and all other officers of the United States whose appointments are not therein otherwise provided, and which shall be established by law.  He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner.

This act passed on the 2nd of April 1792 and the Senate which concurred was sitting daily from thence until the 8th of May following.  But the chief Coiner was not nominated during their then sitting, tho' a Director was appointed.

The question is, whether the President can, constitutionally, during  the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session

Is there a vacancy in the office of chief Coiner?  An ofice is vacant when no officer is in the exercise of it.  So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent.  The office of Chief Coiner is therefore vacant.

But is it a vacancy which has happened during the recess of the Senate?  It is now the same and no other vacancy, than that, which existed on the 2nd of April 1792.  It commenced therefore on that day or may be said to have happened on that day.

The Spirit of the Constitution favors the participation of the Senate in all appointments.  But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President.  This power then is to be considered as an exception to the general participation of the Senate.  It ought too to be interpreted strictly.  For altho' I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last session of the Senate; yet every possible delicacy ought to be observed in transferring power from one order in government to another.  It is true that the Senate may finally disapprove.  But they are not left to a judgment absolutely free, when they are to condemn the appointment of a man actually in Office.  In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.

It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office?  Is not the Vacancy under these circumstances once which has never been filled up and therefore in the same predicament, as the Office of Coiner?  However a refined construction may make the cases approach each other, they are different in their relation to the constitution.  In the one, the Senate have had a full opportunity to shew their sense.  In the other not.  In the one the vacancy was filled up, as far as the President and Senate could go; and the Vacancy may be said to have happened during the Recess in consequence of the Refusal.  In the other, not.

An analogy has been suggested to one between a Minister to foreign court and the appointment now under consideration.  With much strength it has contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate.  But, mark the peculiar condition of Minister.  The President is allowed by law to spend a limited sum on diplomatic appointments.  No particular courts are designated; but they are consigned [?] by the Constitution to his [?].  The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade.  But this power would nugatory during the Recess if he could not also name the Person.  How unlike is this example to that of the Coiner, in which the office can be created by congress alone; and in the appointment to which the Senate might have an opportunity, of concurring  at the Session when the law was passed creating it?

My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner.

/s/ Edm. Randolph
July 7 1792

Why Didn't Constantius II Eat Fruit?

It is a terrible irony that, days after the tragic suicide of Aaron Swartz, JSTOR for the first time made articles from its catalog of academic journals available to the general public, at least on a limited basis.  In brief, members of the public not affiliated with colleges and universities (as I am not) can now go to the JSTOR site, fill out a form and obtain a user name and password that allows them to search for and store articles on a personal “bookshelf” without charge.  Access is limited in that you can store only up to three articles on your “bookshelf”, and each article must remain there for thirteen days.  In other words, you can access no more than three articles over a two-week period. In addition, you cannot download articles without paying a ridiculous per-article fee. (I do note that, since the pages appear as GIF images, it should be possible to download images page-by-page without paying a fee.)

Having heard that JSTOR was now available, I promptly signed up and, as a test, located an article I had previously complained I was unable to access: Why Didn’t Constantius II Eat Fruit? Having done so, I now report on what I have learned.

By way of background, in his obituary of the emperor Constantius II, the Roman historian Ammianus Marcellinus oddly mentions that one of the late emperor’s virtues was “that so long as he lived he never ate fruit.”  Why on earth not?  And why would Ammianus consider this to be a virtue?  In my prior post, I admitted that I was stumped and expressed frustration at my inability to read the article, which appeared to squarely address the issue.

I am pleased to report that my confusion was well founded.  The author of the article, one David Rohrbacher of the New College of Florida, offers, as we shall see, an answer that is ingenious but obscure and based on a chain tenuous inferences.  I certainly didn't miss anything obvious.

Prof. Rohrbacher begins by eliminating possibilities suggested by other academics. Was the reference intended to highlight, for example, Constantius’ lack of gluttony?  Not likely.  After reviewing the literature the author concludes that “complete abstinence from fruit would be a most unusual way of demonstrating a lack of gluttony.”

Nor does Christian asceticism seem to be a likely source.  Even extreme ascetics who abstained from certain foods (meat and wine are the most common) ate fruit when available and in season. There is no reason to think that Constantius was trying to out-renounce them.

“There was, however, [one] contemporary religion in which fruit-eating was problematic: Manichaeism.”  As Prof. Rohrbacher describes it, Manichees apparently believed that plucking fruit injured the divinity within them.  “In fact, fruit, vegetables, and grains were all forbidden to be plucked or harvested by the Manichean Elect, because Mani had preached that harvesting was injurious to the suffering, captive divinity.”  Whatever the details of Manichaean practice, pro-Nicene Christians such as Augustine “frequently mock[ed] . . . Manichean opponents for abstaining from fruit.”

But what has this to do with Constantius, who was an Arian Christian, but no Manichee?  Prof. Rohrbacher asserts that, however unfairly, orthodox anti-Arian Christians such as Athanasius associated the two beliefs, accusing Arians of being Manichees or suggesting that Arianism leads to Manichaeism. Based upon this association, Rohrbacher speculates that unpreserved “polemics written against the emperor’s Arianism [may] likewise have associated him with Manichaeism, and with the more extravagant practices, such as fruit abstinence, associated with that sect.”

Ammianus Marcellinus, a pagan, may have seen or heard of some of these polemics and, “from ignorance or guile or a combination of the two,” conflated Constantius’ Arianism with Mancheaism. Out of dislike for the emperor, he then catalogued the fruit-abstention slur as a purported virtue to highlight the “pleasing irony” of using “Christian lies to blacken a Christian emperor.”